Judicial Process, Prisons, Law Enforcement: A Case for Reform

By Onikepo Braithwaite

Our illuminating interview with Human Rights Lawyer and Activist, Mr Inibehe Effiong last week titled, ‘I was Tortured in Prison, in which he narrated his experience from court to prison, drew out several important points about the administration of justice sector in Nigeria that require immediate attention; that is, there is a need for urgent reform. Some of the issues Mr Effiong raised bordered on lack of independence of the Judiciary; abuse of authority by some judicial officers; the deplorable conditions of Nigerian prisons which I had previously written about in my editorial of 28/2/17, ‘Imprisonment in Nigeria’. A Fate Worse than Death’; lack of respect for the rule of law and human rights by the authorities; and the recruitment methods, not just for officers of the Nigerian Correctional Centre, but the security agencies and armed forces generally; and discrimination in favour of the richer inmates.

Lack of Independence of the Judiciary & Abuse of Judicial Authority

The fact that most State Judiciaries are beholden to their Governors, and the State Chief Judges have been rendered more or less subservient to their Governors because of inadequate Judiciary funding, is no longer a secret. State Judiciaries depend a lot on the Governors/State Governments for allowances to augment their meagre salaries, even for housing and vehicles. Who will then bite the hand that more or less feeds them? Forget about Baron de Montesquieu’s Doctrine of Separation of Powers and Sections 4-6 of the 1999 Constitution of the Federal Republic of Nigeria (as amended) (the Constitution), which clearly set out and separate the roles of the Executive, Legislature and Judiciary; because in Nigeria, not only do the roles of the three arms of government overlap in a way that they shouldn’t, the Executive is supreme – the numero uno!

The Hon Sir Gerard Brennan AC, KBE, QC Chief Justice of Australia (1995-1998) (of blessed memory), in his Paper “The Role of a Judge” delivered on 13/10/96, stated inter alia thus: “A Judge’s role is to serve the community, in the pivotal role of administering justice according to the law…..It is only when the community has confidence in the integrity and capacity of the Judiciary, that the community is governed by the rule of law…A second and more important point can be made about the function of presiding at a trial. A trial – including a criminal trial – is not the occasion for diminishing the dignity of any person in the courtroom. It is an occasion for the dispassionate finding of facts and applications of the law, not for the humiliation of any of the trial’s participants….The Judge’s role is to keep the ring, not to enter the fight….I should say something about impartiality, the supreme judicial virtue, and the appearance of impartiality….A bastion of impartiality is independence – independence not only from the Executive Government but from other centres of power”.

It seems that some judicial officers do not play this role. Instead, they serve their Governors or executives, instead of serving the community and being impartial. They are partial to their masters, connoting dependence on the Executive, and then take exception when counsel requests that they recuse themselves from cases on the ground of bias or likelihood of same. Counsel also complains that, sometimes, judicial officers can be unnecessarily verbally abusive to them. Mr Effiong has called for the record of proceedings of that day to be made public; If only there was a video recording of the court proceedings.

From Mr. Effiong’s explanation, it is crystal clear that the Governor of Akwa Ibom took precedence in the court of the Chief Judge, and not necessarily justice. From Mr. Effiong’s account of the events that transpired in court on that fateful day, the Chief Judge not only descended into the arena and entered the fight, but she also bent over backwards to please the Governor, whether by wrongfully citing Mr. Effiong for contempt when there was no evidence of contemptuous conduct, or committing him to prison for 30 days without following due process. That there was an attempt to humiliate and break Mr Effiong, by telling him to remove his robe and step out of the Bar, is obvious; while committing him to prison without revealing the charge and giving Mr Effiong an opportunity to defend himself and show cause why he shouldn’t be committed for contempt, is quite the opposite of what CJ Brennan referred to as the ‘supreme judicial virtue’ – impartiality, expected of the Chief Judge. On the contrary, it smacked of intolerance and bias. See 36(1) of the Constitution on fair hearing. See the case of Candide-Johnson v Edigin (1990) LPELR-20108 (CA) on the twin elements of contempt of court – interference and disrespect. We didn’t observe either of these two elements of contempt of court in facie curiae, from Mr Effiong’s catalogue of events.

Solution: Judicial Officers should be faithful to their Judicial Oath, and not allow their personal interest to influence their official conduct or decisions; they must also play their roles as enunciated by CJ Brennan. The budget of the Judiciary at the Federal and State levels should be a First Line Charge, payable to the National Judicial Commission (or Heads of Court) in the case of Federal, and to the State Chief Judges in the case of State High Courts. When the Judiciary is truly financially independent, only then will judicial officers no longer have to dance to the tune of the Executive. Apart from increasing the salaries and allowances of judicial officers, the inconsistencies in the constitutional provisions with regard to judicial remuneration must be addressed and corrected. See Sections 81(3)(c), 84(2), (4), (7), 121(3)(b) of the Constitution and Part 1 Paragraph I National Judicial Council Section 21 (e) to the Constitution and JUSUN v NJC, AGF & 70 Ors Suit No. FHC/ABJ/CS/667/13 delivered on 13/1/14 per A.F.A. Ademola J.

Deplorable Prison Conditions, Recruitment of Law Enforcement Agents & their Mental Capacity

Even though Section 36(5) of the Constitution presumes that a person is innocent until proven guilty; from Mr Effiong’s account, once an individual has the misfortune of being remanded in a Nigerian prison, such an individual is deemed guilty and is deprived of fundamental rights, especially the right to humane treatment, and in some cases, the right to life. See Sections 33 (1), 34 (1)(a) & 35 (1)(a) of the Constitution.

Mr Effiong stated that Government has abandoned Custodial Centres. This is not surprising. If the majority of law-abiding Nigerians feel that Government has abandoned them, how much more people are incarcerated? They are obviously seen as unimportant by Government.

Mr Effiong talked about the ridiculously high number of awaiting trial inmates, gross overcrowding, disgusting food and filth, deplorable living conditions, and the fact that he was tortured openly by one Eyoren (despite the Anti-Torture Act 2015 and punishments prescribed for torture). In my investigation, I discovered that some of the companies that feed the prisoners food which is unfit for human consumption are connected to high-powered people. This shows that the appalling conditions in the prison are very much known and condoned by the establishment. In my aforementioned 2017 editorial, I actually drew a comparison between the conditions in Nigerian prisons, and one of the worst and toughest prisons in the world, Antanimora Prison in Madagascar, Eastern Africa.

Last week, a petition went around social media concerning one Mr Bernard Ogbu who was arrested by the Police in 2019 and has not been seen ever since. All attempts by his family to see him were rebuffed by the Police. The reason for his arrest is also unknown. Some say suspicion of ‘one chance’ crimes. Then I did some investigation into the matter, and when I mentioned the name of the Police Station in Abuja where Mr Ogbu was taken to upon his arrest – the Station was referred to as “the Abattoir”, and I was told that he is probably dead! It seems that the particular Police Station is known for extra-judicial killing. I was also told that, sometimes, extra-judicial killing is necessary for law enforcement!

The question is, what kind of system and law enforcement officers do we have? A system that does not necessarily frown at jungle justice being meted out by their staff it seems; maybe except the activities of such erring staff become public, may they face sanctions. Some of these law enforcement agents are outright criminals involved in heinous crimes like robbery and murder, while others are vicious psychopaths. It’s no surprise, therefore, that torture and extra-judicial killing may be their hobbies.

How are Nigerian Law Enforcement agents recruited? Mr Effiong stated that Eyoren had previously been remanded for murder, and his casemates who were found guilty of murder, are now inmates of Port Harcourt prison. In the UK for example, they have the three-step Police Psychological Exam which includes a pre-test self-evaluation self-interview, survey and multiple-choice tests, and finally, an in-person interview with a Psychologist. Even though the tests evaluate many issues like the history of drug use, personal biases, integrity, honesty and general intelligence, stress management, and mental capacity to handle violence, it isn’t an evaluation of an individual’s mental health per se. However, if an individual fails these tests, it means they are not suitable for a Police career. In the US, Police Departments usually require candidates to undergo psychological evaluations, before they get badges and guns. How effective this is, is another matter, because, for example, white racist officers who kill blacks extra-judicially, still slip through the cracks (recall the ‘I can’t breathe case of George Floyd who was murdered by a Minneapolis Police Officer in 2020).

It is obvious that whether Police, Armed Forces or Correctional Officers, in Nigeria, no proper background checks are done on them, they do not undergo any psychological tests or assessments before recruitment, nor do they undergo any continuous, periodic assessments while on the job. It is also obvious that extra-judicial activities like torture and killing, are not frowned upon by law enforcement agencies, and perpetrators are mostly not held accountable.

Solution: Aside from the fact that a psychological exam is required for new law enforcement intakes, continuous assessment should be introduced for those already in service. Someone like Eyoren should immediately be suspended from duty, properly investigated and punished. It is time for the Anti-Torture Act to be enforced against erring law enforcement agents. Non-enforcement of law is akin to having no law at all.

The mindset of guilty until proven innocent for inmates (accusatorial instead of inquisitorial) must change, especially as our Constitution says the opposite; so also, the belief that inmates have no rights and must be treated in an inhumane manner. The prison system must be completely overhauled. While I’m not saying that they should be converted into five-star hotels, prison conditions require much improvement, not just a change in nomenclature. Treating people worse than animals, giving them rotten food etc, is unacceptable. Prison is not meant to be a death camp or torture chamber; it is meant for society to be protected against crime, for the punishment of erring individuals, and for their rehabilitation, so that they can be reintegrated into society upon release. To this end education, vocational training and work etc should be offered to inmates. The issue of those awaiting trial for years and prison congestion must be addressed.

In my 2017 editorial, I referred to a piece written by the Attorney-General of Ekiti, Olawale Fapohunda, SAN and myself, where we made proposals for Prison Reform like the establishment of a Prisons Commission instead of the combined Immigration, Prison and Civil Defence Board; appointment of a Chief Visitor of Prisons to conduct regular inspections of prisons and take complaints from prison officials and inmates, and provision of adequate medical facilities for inmates. Mr Effiong stated that the prison clinic didn’t have more than Paracetamol, and he had to have his malaria medication purchased from outside.

Discrimination in Favour of Richer Inmates

At Ikot Ekpene Prison, Mr Effiong was able to stay in a special cell with less number of inmates, for a fee of N50,000. Upon his transfer to Uyo Correctional Centre, he opted to stay with the general population, in order to be able to experience prison life firsthand. We see that even in prison, preferential treatment for the privileged which is the norm in our society is also practised.

Conclusion 

The campaign season for the 2023 election, is upon us. What is the manifesto of the Presidential candidates, with regard to the reformation of the administration of the justice sector? Many of the offences that people are incarcerated for are State offences. Is it, therefore, time for prisons to be decentralised? From the issue of the poor remuneration of judicial officers and their consequent dependence on the Executive for sustenance, thereby impeding the independence of the Judiciary; to the appalling conditions in the prisons; to the increase in criminality within the ranks of law enforcement – candidates must articulate their plans for our sector.

SOURCE: DNLLegalandstyle